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2013 DIGILAW 2764 (ALL)

Rishi Raj Patel v. Brij Bihari Singh

2013-11-11

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. Heard Sri J.P. Sharma learned counsel for the petitioner and Sri R.U. Ansari learned counsel appearing on behalf of the sole plaintiff respondent. 2. This writ petition is directed against the order dated 29.05.2004 passed by the Civil Judge (Junior Division), Gorakhpur in Suit no. 797 of 2002 (Brij Bihari Singh Vs Rishi Raj Patel and Another) whereby the amendment application under Order VI Rule 17 CPC filed by the plaintiff respondent has been allowed on payment of cost as also the order dated 30.09.2005 whereby the Revision no. 144 of 2004 (Rishi Raj Patel & Another Vs Brij Bihari Singh) has been rejected by the Additional District Judge Ist, Gorakhpur holding it to be not maintainable under Section 115 CPC. 3. Learned counsel for the petitioners has submitted that by amendment sought the plaintiff respondent has changed the nature of the suit from one of permanent injunction to that of cancellation of sale deed and as such the amendment could not have been allowed. He has further submitted that the amendment was time barred hence the impugned orders are illegal.? The further submission is that a revision under Section 115 CPC was maintainable against an order allowing or rejecting an amendment application under Order VI Rule 17 CPC and by rejecting the revision as not maintainable the revisional court has committed an illegality. 4. Having considered the submission of learned counsel for the petitioner and perused the record it appears that the suit was filed by the plaintiff respondent and along with the suit he had filed an application for grant of temporary injunction. The same was refused and the matter ultimately came up to this court in writ petition wherein an order of statusquo was granted but according to learned counsel the said writ petition was dismissed for non prosecution and has not yet been restored. 5. From the aforesaid it appears that insofar as the temporary injunction application is concerned the matter had come up to the High Court however that is not subject matter of this writ petition and therefore the said circumstances have no relevance for adjudging the validity of the impugned orders. 6. 5. From the aforesaid it appears that insofar as the temporary injunction application is concerned the matter had come up to the High Court however that is not subject matter of this writ petition and therefore the said circumstances have no relevance for adjudging the validity of the impugned orders. 6. By the amendment the plaintiff respondent has stated that during pendency of the suit for permanent injunction filed by him certain transfers were affected by the defendants hence he was compelled to filed the amendment application pleading about the said transfers and claiming a further relief against the defendants therein. This amendment application was allowed by the order dated 29.05.2004 where it has been clearly recorded that the suit has been filed but neither written statement has come nor evidence has been led and as such the trial has not commenced hence the transfer during pendency of the suit brought by amendment ought to be allowed since all the dispute between the parties required to be decided in the suit itself and not compel the plaintiff respondent to file a fresh suit. It has also been held that the proposed amendment was well within time. 7. From the record it appears that the sale deed was executed on 31.08.2001 and the amendment application was brought on 06.04.2004 therefore the finding that the amendment is within time is in accordance with law since the limitation for assailing a sale deed being three years admittedly the amendment was brought within time. 8. Insofar as the question that the nature of suit has changed by the impugned amendment clearly the trial has not started nor the defence of the defendant has come on record nor evidence has been led till date. The sale deed was executed after the suit for permanent injunction was filed. Under such circumstances the Trial Court has rightly allowed the amendment for the reason that all the disputes with respect to the property in question between the plaintiff and the defendant should be decided in this suit itself and no prejudice is being caused to the defendant by allowing the amendment application for the reason that his defence has not yet come on record. Clearly the view of the Trial Court is in accordance with law since the defendant is not prejudiced in any manner whatsoever. 9. Clearly the view of the Trial Court is in accordance with law since the defendant is not prejudiced in any manner whatsoever. 9. Insofar as the revisional order is concerned the revisional court has dismissed the revision as not maintainable in light of the decision of this court in the case of (Prem Bakshi Vs Dharmdev) 2002 ALCJ 119 and (Vimal Kumar Kapoor Vs Additional District Judge) 2005 (2) ARC 239 wherein it has been held that an order passed under Order VI Rule 17 CPC is not revisable under Section 115 CPC. 10. In view of the aforesaid circumstances no interference is required either in the order of the Trial Court nor in the order passed by the revisional court. 11. The writ petition has no merit. It is accordingly dismissed. 12. Interim order, if any, is discharged. 13. No order is passed as to costs.